State v. Billiter

[Cite as State v. Billiter, 

.]




                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       SCIOTO COUNTY


STATE OF OHIO,                                    :

         Plaintiff-Appellee,                      :    Case No.    24CA4095

         v.                                       :

JAROD BILLITER,                                   :    DECISION AND JUDGMENT ENTRY

         Defendant-Appellant.                     :

________________________________________________________________

                                               APPEARANCES:

Brian T. Goldberg, Cincinnati, Ohio, for appellant.1

Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay
Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth,
Ohio, for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:10-6-25
ABELE, J.

         {¶1}     This is an appeal from a Scioto County Common Pleas

Court judgment of conviction and sentence.                        Jarod Billiter,

defendant below and appellant herein, assigns the following

errors for review:

                  FIRST ASSIGNMENT OF ERROR:

                  “THE TRIAL COURT ERRED TO THE PREJUDICE OF
                  MR. BILLITER’S SIXTH AMENDMENT RIGHTS BY
                  ENTERING JUDGMENT OF CONVICTION AFTER A

1     Different counsel represented appellant during the trial court
proceedings.
SCIOTO, 24CA4095                                                    2



           TRIAL AT WHICH HE RECEIVED INEFFECTIVE
           ASSISTANCE OF COUNSEL FOR HIS DEFENSE.”

           SECOND ASSIGNMENT OF ERROR:

           “THE TRIAL COURT VIOLATED MR. BILLITER’S
           CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION
           BY DENYING HIS REQUEST TO TERMINATE COUNSEL
           AND PROCEED PRO SE.”

           THIRD ASSIGNMENT OF ERROR:

           “MR. BILLITER’S CONVICTIONS WERE NOT
           SUPPORTED BY SUFFICIENT EVIDENCE AND ARE
           CONTRARY TO THE MANIFEST WEIGHT OF THE
           EVIDENCE.”

    {¶2}   On November 4, 2021, two members of the Southern Ohio

Drug Task Force, Portsmouth Police Detective Kevin Metzler and

Scioto County Sheriff’s Detective Jay Springs, engaged husband-

and-wife informants, James and Tonyia Elliott, to make a

controlled purchase of illegal drugs from appellant.

    {¶3}   Mrs. Elliott initiated contact with appellant via a

recorded telephone call.    Mrs. Elliott told appellant that she

“need[ed] two.”    Appellant asked her if she wanted them in “the

same bag,” and she responded affirmatively.    Appellant advised

Mrs. Elliott to come to “the shop,” which Mrs. Elliott knew

meant appellant’s store, Truthseekers.    Appellant cautioned

that, if any customers were present when she arrived, then she

should either not enter the store, or, if she did, she should

act like she was shopping.    Appellant stated that he “wouldn’t

be able to do this until they [i.e., any customers] were gone.”
SCIOTO, 24CA4095                                                     3




    {¶4}   Before the Elliotts drove to the store, the task force

officers outfitted them with covert audio- and video-recording

devices and gave them money to purchase the drugs.    When the

couple arrived at appellant’s store, a customer was present, so

they walked around the store until the customer left.    As soon

as the customer left, the Elliotts approached the counter, and

appellant entered a back room.    A few moments later, appellant

emerged with a small plastic bag, handed the bag to Mrs.

Elliott, and Mrs. Elliott gave appellant money.    Appellant

placed the money in his pocket.

    {¶5}   Afterward, the Elliotts rendezvoused with the

detectives and gave them the plastic bag.    Testing later

revealed that the plastic bag contained 1.96 grams of a fentanyl

mixture.

    {¶6}   A Scioto County Grand Jury subsequently returned an

indictment that charged appellant with (1) trafficking in a

fentanyl-related compound, in violation of R.C. 2925.03(A)(1), a

fourth-degree felony, (2) possession of a fentanyl-related

compound, in violation of R.C. 2925.11(A), a fifth-degree

felony, and (3) possession of criminal tools, in violation of

R.C. 2923.24(A), a fifth-degree felony.     Appellant entered not-

guilty pleas.



    {¶7}   At trial, the State presented four witnesses:
SCIOTO, 24CA4095                                                      4



Detective Metzler, Mr. Elliott, Mrs. Elliott, and Detective

Springs.   Detective Metzler testified that in early November

2021, task force officers executed a search warrant at the

Elliotts’ residence.    During the search, officers discovered “a

small amount of fentanyl” and “other items associated with the

distribution of drugs.”     After interviewing the Elliotts, the

task force turned its investigation to appellant.

    {¶8}   Officers arranged for the Elliotts to make a

controlled buy from appellant.     Mrs. Elliott called appellant’s

phone number to plan the purchase and, during the phone call,

stated, “I need two.”     Appellant told Mrs. Elliott that he was

at his store and that she could come to the store.

    {¶9}   Detective Metzler explained that Mrs. Elliott’s

statement that she needed “two” indicated that she “already had

involvement with [appellant], and when she’s asking just for

two, he already knows what she’s talking about.”     Detective

Metzler stated that, based upon his experience, “two” meant two

grams.

    {¶10} During Detective Metzler’s testimony, the State played

two video recordings of the controlled buy:     one from Mrs.

Elliott’s perspective, and one from Mr. Elliott’s perspective.

Detective Metzler explained that, when the Elliotts arrived at

appellant’s store, a customer was present.    After the customer

left, appellant entered a back room.     When he emerged, he handed
SCIOTO, 24CA4095                                                      5



a bag of drugs to Mrs. Elliott, and Mrs. Elliott handed

appellant the money.     Appellant then placed the money in his

pocket.     Detective Metzler stated that the video recording

showed appellant selling fentanyl.

    {¶11} After the Elliotts completed the purchase, they

reconnected with Detectives Metzler and Springs and gave them

the plastic bag that they had obtained from appellant.     The

detectives performed a field test, and the substance tested

positive for cocaine.     Detective Metzler explained that other

officers have been seeing similar field tests returning as

presumptive positive for cocaine, even though lab tests later

confirmed the substances as fentanyl mixtures.     The detective

ultimately sent the plastic bag to the Bureau of Criminal

Investigation (BCI) for further testing.

    {¶12} In July 2022, Detective Metzler received the results

from BCI.     The report stated that the plastic bag contained 1.96

grams of a fentanyl mixture.

    {¶13} On cross-examination, Detective Metzler indicated that

the first video that the State played showed the transaction

from Mrs. Elliott’s perspective, and he agreed that Mrs.

Elliott’s video camera did not capture the hand-to-hand

transaction.     He further agreed that, when Mrs. Elliott called

appellant to inquire about buying “two,” she did not

specifically name a drug.     The detective explained, however,
SCIOTO, 24CA4095                                                     6



that “when informants are typically reaching out to their source

of supply they try . . . to keep communications minimal.”      He

stated that if the informant had previous contact with the

supplier, then the supplier will know what the informant means

by “two,” as in “two grams of fentanyl or heroin or whatever

their drug of choice is.”

    {¶14} Appellant’s counsel asked Detective Metzler whether

officers seized the money that Mrs. Elliott had used to purchase

the drugs.   The detective explained that officers did not seize

any money because they did not obtain a search warrant for

appellant’s property.   He stated that the officers “lost

connection with [appellant].”   Detective Metzler was aware,

however, that appellant continued to operate his store.

    {¶15} Appellant’s counsel asked the detective if he knew why

a drug would “test positive for something else in the field and

a different type of drug in the lab[.]”    Detective Metzler

explained that “[i]t could be many things,” but he was unable to

state why some “analogs of fentanyl or opiates that are fentanyl

are testing positive for . . . cocaine.”    He agreed that the lab

test indicated that the substance contained “three different

kinds of fentanyl.”

    {¶16} On re-direct, Detective Metzler explained that, if an

informant calls a supplier and asks for “two grams of heroin,”

it may jeopardize the informant’s ability to complete a
SCIOTO, 24CA4095                                                     7



purchase.   The detective also noted that, when Mrs. Elliott

stated that she needed “two,” appellant did not ask her what she

meant.   Instead, he asked her if she wanted “them in the same

bag.”

    {¶17} The prosecutor next asked Detective Metzler to explain

why, after the Elliotts had completed the controlled purchase,

officers did not seek a warrant to search appellant’s property.

The detective stated that officers typically do not seek a

search warrant based upon a single, controlled buy.   Instead,

officers generally prefer “to conduct multiple control video

recorded purchases just to obtain more information prior to that

search warrant to get any information that we didn’t have.”

    {¶18} The prosecutor additionally asked Detective Metzler

whether the field test or the lab test is more accurate.     The

detective replied that the lab test is “more accurate.”

    {¶19} The State next called Mr. Elliott to testify, and he

testified that he and Mrs. Elliott do not use drugs, but

purchased them on behalf of other individuals.   Appellant was

his supplier.



    {¶20} After officers discovered drugs inside the Elliotts’

residence, he and Mrs. Elliott were criminally prosecuted.     Mr.

Elliott entered a guilty plea to fourth-degree-felony drug

trafficking and was placed on community control.   As part of his
SCIOTO, 24CA4095                                                    8



plea agreement, he agreed to assist the drug task force.

    {¶21} On the date of the controlled buy from appellant, Mrs.

Elliott called appellant and asked for “two.”   Mr. Elliott

understood Mrs. Elliott’s request for “two” to be a request for

two grams of fentanyl.

    {¶22} After Mrs. Elliott spoke with appellant, they drove to

appellant’s store.   Because a customer was inside the store,

before they approached appellant to complete the drug

transaction the Elliotts waited for the customer to depart.

    {¶23} After the customer left, Mrs. Elliott went to the

counter, and appellant prepared the drugs.   Mrs. Elliott handed

appellant money, and appellant gave Mrs. Elliott the plastic bag

that contained the drugs.   Appellant placed the money in his

pocket.   The Elliotts then left the store, met with Detective

Springs, and gave him the plastic bag that they had obtained

from appellant.

    {¶24} On cross-examination, Mr. Elliott stated that he has

known appellant for 10 to 12 years.   Since November 4, 2021, the

date of the controlled drug buy, he has spoken to appellant a

few times.   He believed that they last spoke in June 2023.

Appellant’s counsel did not ask Mr. Elliott any other questions.

    {¶25} Mrs. Elliott, the State’s next witness, testified that

she and appellant were high-school classmates, and they have had

a “friendship” for around 20 years.   Mrs. Elliott did not use
SCIOTO, 24CA4095                                                      9



drugs, but she purchased drugs from appellant on behalf of other

individuals.

    {¶26} After officers searched her house and discovered

drugs, she agreed to cooperate with officers.     Mrs. Elliott

later entered a guilty plea to drug trafficking and was placed

on community control.

    {¶27} On the date of the controlled buy, the Elliotts met

with members of the drug task force.     The officers outfitted

them with covert recording devices and gave them money to

purchase the drugs.     Mrs. Elliott called appellant to arrange

the transaction.   She told him that she needed “two.”    Mrs.

Elliott explained that appellant knew what she meant because he

is “a drug dealer,” and they had a pre-existing relationship.

Appellant told Mrs. Elliott that he was at his store and that

she could come to the store.     He further advised Mrs. Elliott

that, if a customer was inside the store, she should “look

around like [she] was shopping.”



    {¶28} When the Elliotts arrived at appellant’s store a

customer was present, so they acted like they were shopping.

After the customer left, appellant handed Mrs. Elliott two grams

of fentanyl.   Mrs. Elliott recognized the drug as fentanyl based

on her previous experience.    During the transaction, appellant

mentioned an ongoing custody issue involving his son.     After she
SCIOTO, 24CA4095                                                    10



and Mr. Elliott left the store, they reconnected with the task

force officers and gave them the plastic bag.

    {¶29} On cross-examination, appellant’s counsel questioned

Mrs. Elliott about the length of time that she has known

appellant and whether they have been “friends.”    Mrs. Elliott

stated that they were “acquaintances,” and, after the controlled

buy, they remained “acquaintances.”   She did not recall the last

time that she had contact with appellant.

    {¶30} Appellant’s counsel further asked Mrs. Elliott whether

she was aware that appellant had a pending custody case.     Mrs.

Elliott stated that she was aware and had been planning to

testify on appellant’s behalf.

    {¶31} The State next called Detective Springs who testified

that the Elliotts agreed to act as informants.    He listened to

the phone call between Mrs. Elliott and appellant and stated

that it indicated “a drug deal.”   Detective Springs explained

that drug buyers and suppliers are intentionally ambiguous with

the language they use when talking about drugs, so he did not

find Mrs. Elliott’s statement to appellant that she needed “two”

to be unusual.

    {¶32} When the Elliotts arrived at appellant’s store, they

did exactly as appellant instructed them to do if a customer was

present:   They acted as if they were shopping.   Immediately

after the customer left, “[i]t [went] straight to business, [a]
SCIOTO, 24CA4095                                                     11



transaction for dope.”

       {¶33} Detective Springs monitored the transaction via audio

and video.     The audio recorded a “banging sound.”   This sound

suggested that appellant had a larger amount of the drug and

needed to break it apart.     Detective Springs stated, “when we

hear that, it’s . . . a good . . . thing to hear, cause you

think, okay, there’s a lot there. . . .”

       {¶34} Shortly after the banging sound ended, appellant

appeared with a small plastic bag in his hand, ensured that it

was closed, and handed it to Mrs. Elliott.     Mrs. Elliott gave

appellant the money, and he placed it in his pocket.

       {¶35} When the Elliotts left appellant’s store, they drove

to the location where Detectives Metzler and Springs were

waiting.     The Elliotts gave the plastic bag to the detectives.

The detectives immediately placed the drugs into an evidence

bag.

       {¶36} Detective Springs indicated that, after the date of

the controlled buy, officers continued to investigate appellant

but could not engage a new informant.

       {¶37} On cross-examination, Detective Springs agreed that

appellant was not arrested on the date of the controlled buy,

November 4, 2021.     On that date, the detective completed a

standard form titled, “arrest report.”     Detective Springs

explained that this form reports “exactly what took place for
SCIOTO, 24CA4095                                                          12



that day.”    He further indicated that, despite the name of the

report, appellant was not arrested.

     {¶38} After Detective Springs testified, the court excused

the jurors, admitted the State’s exhibits into evidence and the

State rested.

     {¶39} When the jury returned to the courtroom, the State

formally rested, and appellant’s counsel indicated that

appellant did not intend to offer evidence.          At that point,

appellant interjected that he “would like to motion for

ineffective . . . assistance of counsel.”         The court then

excused the jury and then allowed appellant to elaborate.

     {¶40} Appellant repeated his assertion that counsel had been

ineffective and further stated that he wanted to present closing

argument on his own behalf.       Appellant also asserted that the

State committed “a Brady violation.”2        Appellant claimed that

Detective Springs had submitted a fraudulent arrest report that

indicated that, on November 4, 2021, appellant had been arrested

for trafficking in heroin.       The trial court pointed out that

appellant’s counsel asked the detective about the arrest report,

and the detective explained it.

     {¶41} Appellant also complained that the detectives’ field


2     The rule set forth in Brady v. Maryland, 

 (1963), requires
the prosecution “to disclose evidence that is favorable to the accused and
material to the accused’s guilt or punishment.” State v. McNeal, 2022-Ohio-
2703, ¶ 19, citing 

.
SCIOTO, 24CA4095                                                   13



testing indicated that the drug was cocaine, but “then seven

months later [it] transforms into another drug and the only

opinions that we got were from the detectives on that matter

when they are not experts in if a drug can magically transform

from one substance to another.”    The trial court, however, did

not find any evidence of a Brady violation.

    {¶42} The trial court next asked appellant to elaborate on

his complaint regarding ineffective assistance of counsel.

Appellant stated that he “had no communication with my Counsel,

rarely, about any evidence in this case until one day before

jury trial.”   Appellant also stated that he asked trial counsel

“multiple times to present evidence and she refused.”    Appellant

claimed that he had “[e]vidence that proves what [he] was doing

that day—the day in question,” along with “the day after [the

day in] question.”     He further suggested that he had evidence

that “directly ties the confidential informant’s [sic] witnesses

to my custody case.”

    {¶43} Appellant additionally complained that trial counsel

“did not effectively cross examine video evidence that the

Prosecution left out.”    He pointed out that portions of the

undercover video recordings showed “the sky” and did not show

what the informants were doing.

    {¶44} Appellant next asserted that his counsel

“ineffectively questioned Detective Springs about an
SCIOTO, 24CA4095                                                        14



investigation on [appellant] when [he] was never questioned by

any police, searched, anything.”     He also criticized counsel

because she did not “ask any questions that [he] asked her to

ask” and did not present any evidence on his behalf.

    {¶45} Trial counsel, however, disputed appellant’s claim

that she had not communicated with appellant until the day

before trial.     She also stated that she could not submit the

evidence that appellant wanted her to submit because she did not

have a witness to introduce the evidence.     Trial counsel further

indicated that she did not identify any witnesses who would help

appellant’s defense.     She agreed that appellant has some time-

stamped social-media posts that showed that he was not arrested

on November 4, 2021.     Counsel believed that she had elicited

that same information during her cross-examination of Detective

Springs.

    {¶46} The trial court next turned to appellant’s request

that he be allowed to present his closing argument pro se.        The

State asserted that appellant’s request was untimely.     The court

agreed that appellant’s request was untimely and denied it on

that basis.     The court also found that allowing appellant to

present closing argument pro se would “only serve to confuse the

jury, and serve potentially to offer argument, not evidence that

was not offered to the jury.”

    {¶47} The trial court asked appellant whether he wished to
SCIOTO, 24CA4095                                                    15



say anything else before the jury returned to the courtroom.

Appellant stated that “this is just crazy” and that he did not

understand why he could not defend himself.   He proclaimed that

he was involved “in a custody battle right now” and was “being

framed for a charge.”   The court responded, “All right,” and

asked that the jury be returned to the courtroom.

    {¶48} During closing argument, appellant’s counsel pointed

out that officers never arrested appellant, seized money from

him, or searched his home or business.   Trial counsel observed

that appellant continued to operate his business, and the

Elliotts maintained some contact with appellant, despite the

officers’ claims that they lost contact with appellant.     Trial

counsel ended her closing argument by inviting the jury to

question the credibility of the Elliotts’ testimony due to the

criminal charges that led them to agree to cooperate with the

drug task force.

    {¶49} The jury subsequently found appellant guilty of all

three counts as charged in the indictment.

    {¶50} On July 15, 2024, the trial court sentenced appellant.

Before it announced appellant’s sentence, the court merged the

trafficking and possession offenses, and the State elected to

proceed to sentencing on the trafficking offense.   The court

then ordered appellant to serve an 18-month prison term for the

trafficking offense and a 12-month prison term for the
SCIOTO, 24CA4095                                                          16



possession-of-criminal-tools offense, with the sentences to be

served consecutively to one another, for a total aggregate

prison term of 30 months.      This appeal followed.3

                                     I

     {¶51} In his first assignment of error, appellant asserts

that he did not receive the effective assistance of counsel.

Appellant contends that trial counsel was ineffective for (1)

failing to “effectively cross-examine witnesses for the State”

and (2) making “a bare bone closing argument.”

                                     A

     {¶52} The Sixth Amendment to the United States Constitution,

and Article I, Section 10 of the Ohio Constitution, provide that

defendants in all criminal proceedings shall have the assistance

of counsel for their defense.       The United States Supreme Court

has generally interpreted this provision to mean a criminal

defendant is entitled to the “reasonably effective assistance”

of counsel.    Strickland v. Washington, 

 (1984);

accord Hinton v. Alabama, 

 (2014) (the Sixth

Amendment right to counsel means “that defendants are entitled

to be represented by an attorney who meets at least a minimal

standard of competence”).


3     On September 9, 2024, appellant filed a notice of appeal and a motion
for leave to file a delayed appeal. On October 21, 2024, this court granted
appellant’s motion.
SCIOTO, 24CA4095                                                    17




    {¶53} To establish constitutionally ineffective assistance

of counsel, a defendant must show that (1) trial counsel’s

performance was deficient and (2) the deficient performance

prejudiced the defense and deprived the defendant of a fair

trial.   E.g., Strickland, 

; State v. Myers, 2018-

Ohio-1903, ¶ 183; State v. Powell, 

.

“Failure to establish either element is fatal to the claim.”

State v. Jones, 

 (4th Dist.).    Therefore, if

one element is dispositive, a court need not analyze both.

State v. Madrigal, 

 (2000) (a defendant’s

failure to satisfy one of the ineffective-assistance-of-counsel

elements “negates a court’s need to consider the other”).

    {¶54} The deficient performance part of an ineffectiveness

claim “is necessarily linked to the practice and expectations of

the legal community:    ‘The proper measure of attorney

performance remains simply reasonableness under prevailing

professional norms.’”    Padilla v. Kentucky, 

(2010), quoting Strickland, 

; accord Hinton, 

.   Accordingly, “[i]n order to show deficient

performance, the defendant must prove that counsel’s performance

fell below an objective level of reasonable representation.”

(Citations omitted.)    State v. Conway, 

, ¶ 95.

Furthermore, “‘[i]n any case presenting an ineffectiveness

claim, the performance inquiry must be whether counsel’s
SCIOTO, 24CA4095                                                      18



assistance was reasonable considering all the circumstances.’”

Hinton, 

, quoting Strickland, 

.

    {¶55} Moreover, when considering whether trial counsel’s

representation amounts to deficient performance, “a court must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance[.]”

Strickland, 

.   Thus, “the defendant must overcome

the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.”    

Additionally, “[a] properly licensed attorney is presumed to

execute his duties in an ethical and competent manner.”       State

v. Taylor, 

 (4th Dist.), citing State v.

Smith, 

 (1985).   Therefore, a defendant

bears the burden to show ineffectiveness by demonstrating that

counsel’s errors were “so serious” that counsel failed to

function “as the ‘counsel’ guaranteed . . . by the Sixth

Amendment.”   Strickland, 

; e.g., State v. Gondor,

, ¶ 62; State v. Hamblin, 

(1988).

    {¶56} To establish prejudice, a defendant must demonstrate

“‘a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.    A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’”       Hinton,
SCIOTO, 24CA4095                                                    19

, quoting Strickland, 

; e.g.,

State v. Short, 

; State v. Bradley, 

 (1989), paragraph three of the syllabus; accord State

v. Spaulding, 

 (prejudice component requires

a “but for” analysis).    “‘[T]he question is whether there is a

reasonable probability that, absent the errors, the factfinder

would have had a reasonable doubt respecting guilt.’”     Hinton,

, quoting Strickland, 

.

    {¶57} Furthermore, courts ordinarily may not simply presume

the existence of prejudice but, instead, must require a

defendant to affirmatively establish prejudice.     E.g., State v.

Clark, 

, ¶ 22 (4th Dist.); State v. Tucker, 

 (4th Dist. Apr. 2, 2002).     Additionally, we have

repeatedly recognized that speculation is insufficient to

establish the prejudice component of an ineffective assistance

of counsel claim.   E.g., State v. Tabor, 

(4th Dist.); State v. Leonard, 

, ¶ 68 (4th Dist.);

accord State v. Powell, 

 (a purely

speculative argument cannot serve as the basis for an

ineffectiveness claim).

                                  B

    {¶58} Appellant first claims that trial counsel performed

ineffectively for her failure to thoroughly cross-examine the

two informants, Mr. and Mrs. Elliott.     Appellant argues that the
SCIOTO, 24CA4095                                                    20



two informants “had significant credibility issues” that trial

counsel did not explore.   He states that both informants

“admitted they had engaged in [the] alleged undercover drug sale

to get a sentencing reduction on their own cases.”    Appellant

contends that trial counsel should have asked the informants how

much prison time they faced for the offenses.    Appellant asserts

that “[i]f the jury was told [the informants] received a

significant reduction in their charges, [the jury] may have

questioned the reliability of their testimony.”

    {¶59} Appellant additionally argues that trial counsel was

ineffective for failing “to investigate a bias between one of

the State’s main witnesses and [appellant].”    Appellant further

states that, during trial, he “claimed to have evidence that one

of the informants was directly tied to his custody case.”

Appellant contends that, although the record does not indicate

what information appellant possessed, trial counsel should have

inquired.

    {¶60} In general, “‘[t]he scope of cross-examination falls

within the ambit of trial strategy, and debatable trial tactics

do not establish ineffective assistance of counsel.’”    State v.

Spaulding, 

, quoting Conway, 

,

at ¶ 101.   Furthermore, a defendant alleging that trial counsel

performed deficiently during cross-examination “must identify

the questions that [the defendant] believes [defense] counsel
SCIOTO, 24CA4095                                                  21



should have asked and must provide some sense of the information

that might have been elicited.”   State v. Beasley, 2018-Ohio-

493, ¶ 15, citing State v. Frazier, 

, ¶ 220.

Otherwise, courts will presume that counsel’s choice to forgo

additional cross-examination constituted a legitimate tactical

decision.   See State v. Foust, 

 (counsel

made a legitimate tactical decision to forgo additional cross-

examination, and the defendant “fail[ed] to explain how further

cross-examination of [the witness] would have made a difference

in his case”); State v. Hanna, 

 (counsel’s

choice to forgo further cross-examination was a legitimate

tactical decision made “to avoid the danger of reinforcing the

state’s evidence . . . and clarifying expert testimony that

might not come out in [the defendant]’s favor . . . .”); see

also Beasley at ¶ 15; 

.

    {¶61} In the case at bar, trial counsel’s decision to forgo

additional cross-examination of the two informants appears to be

a legitimate tactical decision intended to avoid highlighting

the strength of the State’s audio and video evidence.     If

counsel had asked the informants questions about their plea

agreements to attempt to bring the reliability of their

testimonies into question, then the prosecutor may have sought,

on redirect, to again point out that the audio and video

recordings strongly corroborated their testimonies.
SCIOTO, 24CA4095                                                  22




    {¶62} Additionally, because the audio and video recordings

corroborated the informants’ testimonies, trial counsel

reasonably could have decided that attacking the reliability of

their testimonies would have been unsuccessful.   Appellant,

therefore, cannot establish that trial counsel performed

deficiently by failing to question the credibility of the

informants’ testimonies.

    {¶63} Moreover, even if trial counsel’s cross-examination of

the two informants was deficient, appellant cannot establish a

reasonable probability that the outcome of the trial would have

been different, if trial counsel had asked the informants

questions regarding the penalties that the informants faced in

the absence of their plea agreements.   As we noted above, the

audio and video recordings corroborated the informants’

testimonies.   Thus, the jury likely would not have been swayed

to discredit the informants’ testimonies if trial counsel had

inquired into the penalties that the informants faced in the

absence of their plea agreements.   Furthermore, attacking the

informants’ credibility would not have undermined the

evidentiary strength of the audio and video recordings.     We

therefore do not agree with appellant’s argument that trial

counsel was ineffective for failing to attack the credibility of

the informants’ testimonies.

    {¶64} Appellant also argues that trial counsel should have
SCIOTO, 24CA4095                                                  23



asked questions (1) to investigate a bias between one of the

informants and appellant, and (2) to uncover whether “one of the

informants was directly tied to his custody case.”      These

arguments are speculative.   See Frazier, 

, at ¶

220 (“whether further questioning would have unearthed any

useful information is speculative”).   Speculation is

insufficient to establish an ineffective-assistance claim.

E.g., State v. Guysinger, 

 (4th Dist.),

citing Short, 

 (mere speculation cannot

support either the deficient-performance or prejudice

requirements of an ineffective-assistance claim).    Appellant

thus cannot establish that trial counsel performed deficiently

by failing to cross-examine the informants regarding these

issues or that any deficient performance resulted in prejudice.

    {¶65} Additionally, appellant’s arguments appear to rely

upon evidence that is not contained in the record.      To the

extent that appellant’s ineffectiveness claim relies upon

evidence that is not contained in the record, we may not

consider it on direct appeal.   See State v. Goff, 2018-Ohio-

3763, ¶ 44 (relying on evidence outside the record is not

appropriate on a direct appeal); State v. Hartman, 

 (2001) (if establishing ineffective assistance of

counsel requires evidence outside the record on direct appeal,

then the court cannot consider the claim); see also State v.
SCIOTO, 24CA4095                                                     24



Ishmail, 

 (1978) (an appellate court is

limited “to what transpired in the trial court as reflected by

the record made of the proceedings”).     We therefore do not agree

with appellant’s argument that trial counsel was ineffective for

failing to ask the informants additional questions during cross-

examination.

                                   C

    {¶66} Appellant next argues that trial counsel failed to

provide the effective assistance of counsel during closing

argument.    He contends that counsel’s closing argument “was not

effective and likely had little impact on the jury.”     Appellant

states that trial counsel’s closing argument spans “less than

three pages of the transcript” and complains that she did not

“discuss reasonable doubt, the importance of it, or how high of

a burden it is for the State to overcome.”

    {¶67} “[C]ounsel are afforded wide latitude during closing

arguments.     The length of a closing argument ordinarily involves

questions of discretion and strategy.”     State v. Grate, 2020-

Ohio-5584, ¶ 163; accord State v. White, 

(4th Dist.), quoting Guysinger, 

 (4th

Dist.) (“Generally, ‘[c]ounsel’s decision on whether to give an

opening statement or closing argument and how to formulate and

deliver them are tactical decisions.’”).     The length of a

closing argument thus is a debatable trial tactic that generally
SCIOTO, 24CA4095                                                    25



does “‘not constitute a deprivation of effective counsel.’”

Grate at    ¶ 163, quoting State v. Lang, 

.

Likewise, “‘[t]he substance of closing argument falls within the

realm of trial strategy.’”     State v. White, 

(4th Dist.), quoting State v. Cameron, 

, ¶ 31

(10th Dist.); accord State v. Sharpless, 

, *9

(11th Dist. Dec. 18, 1998) (“[t]he substance of closing argument

is a trial strategy that may not be second-guessed with

hindsight”).

    {¶68} In the case sub judice, we do not believe that

appellant can overcome the presumption that the length and

substance of trial counsel’s closing argument was a matter of

reasonable trial strategy, especially considering the strength

of the State’s evidence.     Furthermore, given the overwhelming

evidence of appellant’s guilt, even if counsel’s performance was

deficient, appellant cannot show that any deficiency resulted in

prejudice.   See id. at ¶ 164 (“Given the overwhelming evidence

of [the defendant]’s guilt, even if counsel’s performance was

deficient, [the defendant] cannot show that he was

prejudiced.”).     Thus, even if counsel had raised the arguments

that appellant desired, we do not believe that a reasonable

probability exists that the jury would have reached a different

decision.    We therefore do not agree with appellant’s argument

that trial counsel was ineffective for failing to present a more
SCIOTO, 24CA4095                                                   26



robust closing argument.

                                  D

    {¶69} In sum, appellant cannot establish that trial counsel

was ineffective for (1) failing to further cross-examine the two

informants or (2) choosing to present a succinct closing

argument.

    {¶70} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

                                 II

    {¶71} In his second assignment of error, appellant asserts

that the trial court violated his right of self-representation

by refusing to allow him to present his closing argument pro se.

    {¶72} The right to counsel under the Sixth Amendment to the

United States Constitution includes the right to self-

representation.    See Faretta v. California, 

, 819-

821 (1975) (examining the substance and structure of the Sixth

Amendment to conclude that the right to self-representation is

implied in the panoply of rights granted to criminal

defendants); see also Adams v. United States ex rel. McCann, 

 (1942) (the Sixth Amendment right to the

assistance of counsel implicitly includes a “correlative right

to dispense with a lawyer’s help”).

    {¶73} In accordance with this right, a criminal defendant

“may proceed to defend himself without counsel when he
SCIOTO, 24CA4095                                                   27



knowingly, voluntarily and intelligently elects to do so.”

State v. Gibson, 

 (1976), paragraph one of the

syllabus, citing Faretta v. California, 

 (1975).

“If a trial court denies the right to self-representation when

the right has been properly invoked, the denial is per se

reversible error.”   State v. Neyland, 

,

citing State v. Reed, 

 (1996), citing

McKaskle v. Wiggins, 

 (1984).



    {¶74} To properly invoke the right, a defendant must

“‘timely and unequivocally’” assert the right.    State v.

Cassano, 

, quoting Jackson v. Ylst, 

 (9th Cir.1990); see also Martinez v. Court of Appeal of

California, Fourth Appellate Dist., 

 (2000)

(“most courts require” a defendant to assert the right to self-

representation “in a timely manner”).   The failure to properly

invoke the right through a timely and unequivocal request

results in a waiver of the right.   See 

, quoting

 (“‘The constitutional right of self-

representation is waived if it is not timely and unequivocally

asserted.’”); accord State v. Knuff, 

.      Thus,

a trial court may properly deny a request for self-

representation that is untimely.    See 

; see also

State v. Degenero, 

 (11th Dist.), quoting
SCIOTO, 24CA4095                                                  28



State v. Deir, 

 (11th Dist.) (“a trial court

may predicate ‘its decision solely on the timing of appellant’s

request’”).

    {¶75} Courts typically consider a request for self-

representation untimely when the defendant makes the request

after the trial has begun.   See Neyland, 

(the trial court did not err by denying the defendant’s request

for self-representation as untimely when he did not make the

request until right “before the beginning of the trial-phase

closing arguments”); State v. Vrabel, 

, ¶ 53 (“the

trial court did not abuse its discretion and properly refused

appellant’s request to represent himself after voir dire had

been completed and on the first day that evidence was to be

presented”); see, e.g., State v. Barron, 

(2d Dist.) (“request for self-representation was untimely since

it was made on the second day of trial in the middle of the

State’s case-in-chief”); State v. Beamon, 

(12th Dist.) (request for self-representation made on the second

day of trial, after the State had nearly completed its case-in-

chief, was untimely); State v. Montgomery, 

(5th Dist.) (request made after the presentation of three

witnesses was untimely); see also 

 (the trial court

properly denied the defendant’s request for self-representation

as untimely when the defendant made the request eight days
SCIOTO, 24CA4095                                                  29



before jury selection began).

    {¶76} In the case at bar, after our review we do not believe

that the trial court improperly denied appellant’s request for

self-representation.   Appellant did not assert the right until

the close of evidence, immediately before closing arguments.

Thus, appellant did not timely assert the right, and the trial

court properly denied it on that basis alone.   See 

; Degenero, 

 (11th Dist.).



    {¶77} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error.

                                III

    {¶78} In his third assignment of error, appellant asserts

that the record does not contain sufficient evidence to support

his convictions and that his convictions are against the

manifest weight of the evidence.

    {¶79} Initially, we observe that “sufficiency” and “manifest

weight” present two distinct legal concepts.    Eastley v.

Volkman, 

 (“sufficiency of the evidence is

quantitatively and qualitatively different from the weight of

the evidence”); State v. Thompkins, 

 (1997),

syllabus; accord State v. Nicholson, 

.     A

claim of insufficient evidence invokes a due process concern and

raises the question whether the evidence is legally sufficient
SCIOTO, 24CA4095                                                    30



to support the verdict as a matter of law.     Thompkins, 

.     When reviewing the sufficiency of the evidence,

our inquiry focuses primarily upon the adequacy of the evidence;

that is, whether the evidence, if believed, reasonably could

support a finding of guilt beyond a reasonable doubt.     

 at

syllabus.     The “critical inquiry” on appeal “is whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

(Emphasis in original.)      Jackson v. Virginia, 

 (1979); e.g., State v. Jenks, 

(1991), superseded by constitutional amendment on other grounds

as stated in State v. Smith, 

(1997).     Furthermore, a reviewing court is not to assess

“whether the state’s evidence is to be believed, but whether, if

believed, the evidence against a defendant would support a

conviction.”    Thompkins, 

 (Cook, J.,

concurring).

    {¶80} Thus, when reviewing a sufficiency-of-the-evidence

claim, an appellate court must construe the evidence in a light

most favorable to the prosecution.     E.g., State v. Hill, 

 (1996); State v. Grant, 

(1993).     A reviewing court will not overturn a conviction on a

sufficiency-of-the-evidence claim unless reasonable minds could
SCIOTO, 24CA4095                                                    31



not reach the conclusion that the trier of fact did.     State v.

Tibbetts, 

 (2001); State v. Treesh, 

 (2001).

    {¶81} “Although a court of appeals may determine that a

judgment of a trial court is sustained by sufficient evidence,

that court may nevertheless conclude that the judgment is

against the weight of the evidence.”   Thompkins, 

.   “The question to be answered when a manifest-weight

issue is raised is whether ‘there is substantial evidence upon

which a jury could reasonably conclude that all the elements

have been proved beyond a reasonable doubt.’”    State v. Leonard,

, ¶ 81, quoting State v. Getsy, 

 (1998), citing State v. Eley, 

 (1978),

syllabus, superseded by constitutional amendment on other

grounds as stated in Smith, 

.    A

court that is considering a manifest-weight challenge must

“‘review the entire record, weigh the evidence and all

reasonable inferences, and consider the credibility of

witnesses.’”   State v. Beasley, 

, quoting

State v. McKelton, 

.    The reviewing court

must bear in mind, however, that credibility generally is an

issue for the trier of fact to resolve.     State v. Issa, 

 (2001); State v. Murphy, 

 (4th

Dist.).   “‘Because the trier of fact sees and hears the
SCIOTO, 24CA4095                                                    32



witnesses and is particularly competent to decide “whether, and

to what extent, to credit the testimony of particular

witnesses,” we must afford substantial deference to its

determinations of credibility.’”    Barberton v. Jenney, 2010-

Ohio-2420, ¶ 20, quoting State v. Konya, 

, ¶ 6 (2d

Dist.), quoting State v. Lawson, 

 (2d Dist. Aug.

22, 1997).   As the Eastley court explained:



    “‘[I]n determining whether the judgment below is
    manifestly against the weight of the evidence, every
    reasonable intendment must be made in favor of the
    judgment and the finding of facts. . . .
         If the evidence is susceptible of more than one
    construction, the reviewing court is bound to give it
    that interpretation which is consistent with the verdict
    and judgment, most favorable to sustaining the verdict
    and judgment.’”

Id. at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 

 (1984), fn.3, quoting 5 Ohio Jur.3d, Appellate

Review, § 60, at 191-192 (1978).    Thus, an appellate court will

leave the issues of weight and credibility of the evidence to

the fact finder, as long as a rational basis exists in the

record for its decision.     State v. Picklesimer, 

 (4th Dist.); accord State v. Howard, 

(4th Dist.) (“We will not intercede as long as the trier of fact

has some factual and rational basis for its determination of

credibility and weight.”).

    {¶82} Accordingly, if the prosecution presented substantial,
SCIOTO, 24CA4095                                                  33



credible evidence upon which the trier of fact reasonably could

conclude, beyond a reasonable doubt, that the essential elements

of the offense had been established, the judgment of conviction

is not against the manifest weight of the evidence.     E.g.,

, quoting Thompkins, 

,

quoting Black’s Law Dictionary 1594 (6th ed.1990) (a judgment is

not against the manifest weight of the evidence when “‘“the

greater amount of credible evidence”’” supports it).    A court

may reverse a judgment of conviction only if it appears that the

fact finder, when it resolved the conflicts in evidence,

“‘clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial

ordered.’”   Thompkins, 

, quoting State v.

Martin, 

 (1st Dist.1983); accord 

.    A reviewing court should find a conviction against

the manifest weight of the evidence only in the “‘exceptional

case in which the evidence weighs heavily against the

conviction.’”   Thompkins, 

, quoting Martin,

; accord State v. Clinton, 

; State v. Lindsey, 

 (2000).

    {¶83} In the case at bar, after our review we do not believe

that the record lacks sufficient evidence to support appellant’s

convictions, or that his convictions are against the manifest
SCIOTO, 24CA4095                                                           34



weight of the evidence.4      The State introduced into evidence

audio and video recordings that obviously implicated appellant.

The audio recording reveals that appellant understood Mrs.

Elliott’s statement that she needed “two” to mean something

illicit.     Otherwise, he would not have mentioned that, if any

customers were present, Mrs. Elliott should either (1) not enter

the store, or (2) act like she was shopping if she did enter the

store.     Additionally, appellant asked Mrs. Elliott if she needed

“two” “in the same bag.”       This question further demonstrates

that he understood what Mrs. Elliott meant by “two.”             Also,

during the phone call, appellant informed Mrs. Elliott that he

would not “be able to do this until they were gone.”             The

context of the entire conversation suggests that “this” meant

the drug deal and “they” meant customers.

      {¶84} The video recording adds more evidence of appellant’s

guilt.     The video showed that, after Mrs. Elliott approached the

counter, appellant entered a back room, returned with a small

plastic bag, handed the bag to Mrs. Elliott, and accepted money

in exchange for the plastic bag.        The substance inside the



4  We observe that appellant’s argument does not (1) specifically identify any
essential elements of the offenses as lacking sufficient evidence or (2)
challenge any particular findings concerning those elements as being against
the manifest weight of the evidence. Rather, appellant generally asserts
that (1) the record lacks sufficient evidence to support his convictions and
(2) his convictions are against the manifest weight of the evidence. We
limit our review accordingly.
SCIOTO, 24CA4095                                                  35



plastic bag later tested positive for fentanyl.    From all of

this evidence, any rational trier of fact certainly could have

found, beyond a reasonable doubt, that the State had established

the essential elements of the offenses.

    {¶85} Moreover, nothing in the record suggests that the jury

committed a manifest miscarriage of justice by convicting

appellant.   Assuming, arguendo, that the jury had some doubts

about the informants’ credibility, the audio and video

recordings helped surmount any credibility concerns regarding

their testimonies about the controlled purchase.

    {¶86} Furthermore, nothing in the record suggests that the

audio and video recordings lacked authenticity or persuasive

value.   Indeed, two detectives with the drug task force

authenticated the audio and video recordings and identified

appellant as the individual who sold drugs to Mrs. Elliott.      See

State v. Smith, 

 (4th Dist.) (conviction was

not against the manifest weight of the evidence when the

officer’s testimony about the controlled buy, the existence of

audio/video recordings, and the recovery of heroin and

methamphetamine after the controlled buys corroborated the

informant’s testimony); State v. McCullough, 

, ¶ 5

(6th Dist.) (“The record reflects that this case involved

uniquely compelling and irrefutable evidence of appellant’s

guilt.   At trial, the informant’s clear and thorough testimony
SCIOTO, 24CA4095                                                   36



reflecting appellant’s guilt was corroborated and bolstered by

the testimony of the investigating officers, the audio

recordings of the transactions, the identification of

appellant’s voice from the recordings, the serial numbered

currency used in the controlled buys, and the expert testimony

verifying the identity of the substances sold.”).

       {¶87} Appellant nevertheless asserts that to convict him,

“the factfinder had to rely almost completely on” the

informants’ testimonies.    Appellant does not, however,

acknowledge that the audio and video recordings implicate him.

Thus, contrary to his assertion, the jury did not need to rely

“almost completely on” the informants’ testimonies to convict

him.    We therefore do not believe that appellant’s convictions

are against the manifest weight of the evidence.


       {¶88} Accordingly, based upon the foregoing reasons, we

overrule appellant’s third assignment of error and affirm the

trial court’s judgment.

                                                 JUDGMENT AFFIRMED.
SCIOTO, 24CA4095                                                  37



                         JUDGMENT ENTRY

     It is ordered that the judgment be affirmed. Appellee
shall recover from appellant the costs herein taxed.

     The Court finds there were reasonable grounds for this
appeal.

     It is ordered that a special mandate issue out of this
Court directing the Scioto County Common Pleas Court to carry
this judgment into execution.

     If a stay of execution of sentence and release upon bail
has been previously granted by the trial court or this court, it
is temporarily continued for a period not to exceed 60 days upon
the bail previously posted. The purpose of a continued stay is
to allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period,
or the failure of the appellant to file a notice of appeal with
the Supreme Court of Ohio in the 45-day appeal period pursuant
to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio.

     Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of 60 days, the stay will terminate
as of the date of such dismissal.

     A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

    Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

                              For the Court



                              BY:__________________________
                                  Peter B. Abele, Judge


                        NOTICE TO COUNSEL

     Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.